Guerrero v. United States, 1:15-CV-7282-GHW
| Decision Date | 20 April 2017 |
| Docket Number | 1:15-CV-7282-GHW,1:07-CR-0248-GHW |
| Parties | MIGUEL GUERRERO, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
On August 13, 2009, after a seven-day trial in federal court, a jury found Miguel Guerrero guilty of conspiracy to distribute and possess with the intent to distribute at least five kilograms of cocaine. He was sentenced to 240 months imprisonment with a five-year term of supervised release—a sentence substantially below the Sentencing Guidelines range. In 2013, the Second Circuit affirmed his conviction. Mr. Guerrero, currently incarcerated at FCI Allenwood Low and proceeding pro se, now seeks to collaterally challenge his conviction and sentence pursuant to 28 U.S.C. § 2255 on numerous grounds, including ineffective assistance of counsel at various stages of the proceedings, alleged error by the district court, and the alleged invalidity of his conviction. For the reasons set forth below, Mr. Guerrero's motion is DENIED without a hearing.
Mr. Guerrero was arrested on the basis of a complaint filed on February 7, 2007. Dkt. No. 1.1 On March 30, 2017, an indictment was filed, charging Mr. Guerrero with one count of conspiracy to distribute and possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 846. Dkt. No. 7. On April 11, 2007, a superseding indictment was filed,charging Mr. Guerrero and three co-conspirators (Reuben Alvarez, Alfred Glover, and Douglas Bond) with conspiracy to distribute and possess with intent to distribute at least five kilograms of cocaine and at least fifty grams of cocaine base, i.e., crack. Dkt. No. 10. On May 18, 2007, a second superseding indictment was filed, adding a fifth co-conspirator (Marcus Glover). Dkt. No. 27. Finally, on August 15, 2007, a third superseding indictment was filed (the "Indictment"), adding a sixth co-conspirator (Victor Tavarez). Dkt. No. 31.
On November 19, 2008, Mr. Guerrero's trial counsel ("Trial Counsel") filed a motion to suppress certain physical evidence and voice identification testimony. Dkt. No. 77. The motion sought the suppression on Fourth Amendment grounds of a variety of evidence that had been seized from Mr. Guerrero's vehicle, his person, and his home. Dkt. No. 82. The motion also sought the suppression of testimony concerning the identification of Mr. Guerrero's voice, arguing that any such testimony would be the result of an "unnecessarily suggestive voice show-up." Id. at 4. Trial counsel subsequently expanded the scope of the motion to also include the voluntariness of written consent that Mr. Guerrero had given to the search and downloading of his cell phones. Dkt. No. 100. After a hearing, Judge Richard J. Holwell denied Mr. Guerrero's suppression motion. Dkt. No. 117.2
After a seven-day trial held from August 5, 2009 to August 13, 2009, the jury returned a verdict, finding Mr. Guerrero guilty on the sole count of the Indictment.3 On November 17, 2009, Mr. Guerrero filed a pro se letter requesting a new trial; the letter was formally adopted by counsel appointed to represent him during post-conviction proceedings ("Sentencing Counsel"). Dkt. No. 135. Judge Holwell denied the motion by order dated February 18, 2010. Dkt. No. 140.
The United States Probation Office prepared a Pre-Sentence Investigation Report ("PSR") concerning Mr. Guerrero and filed the final version of the PSR on January 22, 2010. The PSR calculated Mr. Guerrero's Sentencing Guidelines range as 360 months to life imprisonment, with a mandatory minimum of 120 months' imprisonment. PSR at 18. The PSR recommended a sentence of 360 months' imprisonment to be followed by a five-year term of supervised release. Id. The addendum to the PSR noted that neither the Government nor defense counsel had any objections. PSR at 17.
After a series of adjournments due in part to Sentencing Counsel's requests for the appointment of an expert neurologist, Mr. Guerrero's Sentencing Counsel filed a sentencing memorandum on January 30, 2012. Dkt. No. 153. The memorandum, which included numerous exhibits, argued for a downward departure or variance from the applicable Guidelines range, primarily on the ground that Mr. Guerrero suffered from an "extraordinary physical impairment." Id. The Government's sentencing memorandum argued for a sentence within the Guidelines range, highlighting, in particular, that Mr. Guerrero had been proven at trial to be responsible for distributing more than 2,000 kilograms of cocaine, and that he had engaged in this conduct over a period of several years. Dkt. No. 154.
Mr. Guerrero's sentencing was held on February 6, 2012. At sentencing, Mr. Guerrero's Sentencing Counsel objected to one factual statement contained in the PSR (that Mr. Guerrero had been arrested in 2000 in possession of a handgun), but both Sentencing Counsel and the Government otherwise assented to the facts contained in the PSR. Sentencing Tr. at 3. Judge Holwell adopted the factual recitations contained in the PSR and noted that the PSR Id. 22:14-19. However, Judge Holwell imposed a below-Guidelines sentence of 240 months' imprisonment to be followed by a five-year term of supervised release. Dkt. No. 157; Sentencing Tr. 23:10-17; 24:15. Although Judge Holwell denied Sentencing Counsel's request for a downward departure on medical grounds, he took Mr. Guerrero's medical condition into account in imposing a below-Guidelines sentence. Sentencing Tr. 22:24-25, 25:23-26:4. Judge Holwell also considered that Mr. Guerrero had had no previous serious offenses or history of violence, that he had strong family support, and that he was likely to be deported after serving his sentence. Id. 26:5-22.
Mr. Guerrero filed a notice of appeal on March 23, 2012. Dkt. No. 158. On July 24, 2012, the Second Circuit appointed new counsel ("Appellate Counsel") to represent Mr. Guerrero on his appeal. Appeal Dkt. No. 22. Appellate Counsel raised two issues on appeal: (1) that Mr. Guerrero was denied his statutory and constitutional rights to a speedy trial, and (2) that the District Court abused its discretion in admitting evidence that (a) Mr. Guerrero had been shot in 2006 while transporting cocaine from Atlanta to New York and (b) he had been arrested in 2002 while driving a car with crystal methamphetamine in a hidden compartment. Appeal Dkt. No. 35. On October 21, 2013, the Second Circuit entered a summary order affirming Mr. Guerrero's conviction. United States v. Guerrero, 541 F. App'x 80 (2d Cir. 2013). Mr. Guerrero did not petition the United States Supreme Court for a writ of certiorari.
On September 9, 2015, after having been granted two extensions by then-Chief Judge Loretta A. Preska, Mr. Guerrero filed this motion pursuant to 28 U.S.C. § 2255. Dkt. No. 183; Civ. Dkt. No. 1 ("Mot.").4 As ordered by the Court, the Government filed a memorandum in oppositionto Mr. Guerrero's motion on January 6, 2016. Dkt. No. 195. Mr. Guerrero filed a reply on January 28, 2016. Civ. Dkt. No. 10.5
Mr. Guerrero's right to collateral relief is governed by Section 2255, which provides:
A prisoner in custody under sentence of a court established by an Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). Relief under § 2255 is generally available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Cuoco v. United States, 208 F.3d 27, 29 (2d Cir. 2000) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Although § 2255, by its terms, provides grounds for attacking "the sentence," the term "sentence" has been interpreted as ageneric term encompassing all of the proceedings leading up to the sentence, including the conviction. See United States v. Payne, 644 F.3d 1111, 1113 n.2 (10th Cir. 2011); Thomas v. United States, 368 F.2d 941, 945-46 (5th Cir. 1966); Kyle v. United States, 297 F.2d 507, 511 n.1 (2d Cir. 1961) ().
"Because requests for habeas corpus relief are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995), abrogated on other grounds by Mickens v. Taylor, 535 U.S. 162 (2002). "[A]n error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." United States v. Frady, 456 U.S. 152, 165 (1982). Even constitutional errors will not be redressed through a § 2255 petition unless they have had a "substantial and injurious effect" that results in "actual prejudice" to the petitioner. Brecht v. Abrahamson, 507 U.S. 619, 623, 637 (1993) (citations omitted); Underwood v...
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